Sager v. Northern Pac. Ry. Co.

• Decision Date: 16 December 1908
• Citation: 166 F. 526
• Parties: SAGER v. NORTHERN PAC. RY. CO.
• Court: U.S. District Court — District of Minnesota

166 F. 526

SAGER v. NORTHERN PAC. RY. CO.

United States Circuit Court, D. Minnesota, Fourth Division.

December 16, 1908

Thomas D. Schall and Freeman P. Lane, for plaintiff.

C. W Bunn and Charles Donnelly, for defendant.

PURDY District Judge (after stating the facts as above) .

It must be conceded that the railroad company was under no common-law obligation to move the circus company's train over its lines of road in the manner in which it was being transported at the time the plaintiff was injured.

It must also be conceded that there is no principle of the common law which forbids the making of contracts of this character as against public policy. These propositions are settled by abundant authority. Coup v. Wabash, etc., Ry. Co., 56 Mich. 111, 22 N.W. 215, 56 Am.Rep. 374; Forepaugh v Delaware, etc., Ry. Co., 128 Pa. 217, 18 A. 503, 5 L.R.A. 508, 15 Am.St.Rep. 672; Robertson v. Old Colony R.R. Co., 156 Mass. 525, 31 N.E. 650, 32 Am.St.Rep. 482; Chicago, etc., Ry. Co. v. Wallace, 66 F. 506, 14 C.C.A. 257, 30 L.R.A. 161; Wilson v. Atlantic, etc., Ry Co. (C.C.) 129 F. 774; Long v. Lehigh V. Ry. Co., 130 F. 870, 65 C.C.A. 354; Clough v. Grand Trunk & Western Ry. Co., 155 F. 81, 85 C.C.A. 1, 11 L.R.A.(N.S.) 446; Railway Company v. Voigt, 176 U.S. 505, 20 Sup.Ct. 385, 44 L.Ed. 560.

1. It is contended, however, that the defendant, in this case the Northern Pacific Railway Company, was under a statutory disability which operated to prevent it from making the contract in question. In support of this contention it is pointed out that the contract was one which was to be performed entirely within the state of North Dakota, and that section 4400 of the Statutes of that state absolutely prohibits the making of all contracts of this character. That section reads as follows:

'Sec. 4400. Every railroad company organized or doing business in this state shall be liable for all damages done to any employe of such company, in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employes, to any person sustaining such damages; and no contract which restricts such liability shall be legal or binding. ' Rev. Codes N.D. 1905.

I am referred to no decision of the Supreme Court of North Dakota wherein this statute has been construed by that court, but counsel for the plaintiff have cited several cases from Kansas and Iowa construing statutes of those states which it is claimed are similar to, if not identical with, the North Dakota statute above quoted. An examination of those cases is therefore rendered necessary.

In the first case cited, Kansas Pacific Ry. Co. v. Peavey, 29 Kan. 169, 44 Am.Rep. 630, the railroad company had made a contract in advance with one of its employes for a waiver and release of the statutory liability imposed upon the railroad company. The Supreme Court of Kansas held the contract void, and no defense to an action brought by the employe against the railway company for damages sustained by him in consequence of the neglect or mismanagement on the part of the company's employes. In this case the contract was clearly within the inhibitions of the statute which forbid railroad companies to restrict by contract or otherwise their liability for damages done to an employe in consequence of the negligence of a fellow servant.

The case of Sewell v. Atchison, T. & S.F. Ry. Co., 96 P. 1007 (Supreme Court of Kansas, May 9, 1908), was one in which an express messenger had entered into contract with an express company whereby he agreed to absolve the express company and the railroad company from liability for any injury occurring to him while traveling over the railway company's lines of road as an express messenger.

The Supreme Court of Kansas upon the first hearing of this case held that the contract was legal and a bar to the action for damages by the widow of Sewell against the railway company. In this opinion the court followed the decision of the Supreme Court of the United States in B. & O.S.W. Ry. Co. v. Voigt, 176 U.S. 498, 20 Sup.Ct. 385, 44 L.Ed. 560.

Upon the rehearing of that case, the attention of the court was directed to the following provision of the state statute:

'That railroads in this state shall be liable for all damages done to persons or property when done in consequence of any negligence on the part of the railroad companies. ' Laws Kan. 1870, p. 197, c. 93.

The court thereupon decided that the contract between Sewell, the express messenger, and his employer, the express company, whereby he agreed to release the express company and the railroad company from all liability for damages occasioned by their negligence, was void, because it was prohibited by the state statute. The point upon which the decision of the court rested is made clear by the following excerpt from the opinion:

'The statute of 1870, equally with that of 1874, was 'made to carry out measures of general policy,' and was 'intended generally to protect the public interests' and 'to vindicate public morals.' It differs from it, mainly in being more general in its terms, and of broader scope, and in not being exclusively for the protection of railroad companies. The argument based upon the relation of master and servant-- the inequality of footing upon which they deal-- fails in the case of the earlier act, except as its protection might be invoked by an employe. An express messenger, although employed only by the express company, is within the protection of that act. As to him, it is a measure guarding his life and safety while engaged in a business fraught with peculiar peril. While he does not deal directly with the railroad company, his contract is made with his employer, with whom he cannot treat on terms of perfect equality. 96 P. 1016.'

The cases of Rose v. Des Moines Valley Ry. Co., 39 Iowa, 246, and O'Brien v. Chicago & N.W. Ry. Co. (C.C.) 116 F. 502, involve the construction of the Iowa statute relating to the liability of common carriers in that state. In the Rose Case the plaintiff was traveling on a pass issued by the railway company, and the Supreme Court of Iowa held that the railroad company could not by a special contract avoid its common-law liability for negligence, and that under the Iowa Code (1873) Sec. 1307, railroad companies were liable for all damages caused by the negligence of their agents or employes, and that no special contract could be entered into exempting them from liability. In the O'Brien Case, supra, involving the validity of a contract made by O'Brien as an employe of the American Express Company, whereby he agreed to absolve the railroad company and the express company from all liability for damages which he might sustain by reason of the negligence of the said companies or either of them, Judge Shiras held that such a contract was void under section 2071 of the Iowa Code. That section declared that all railroad companies operating a railway in that state should be liable for all damages sustained by any person, including employes of such corporations, in consequence of any neglect or mismanagement of its agents or its employes; and it further provided that any contract which restricted such liability should not be legal or binding.

It is quite manifest that both the Kansas and Iowa statutes which were under consideration in the above cases were much broader than section 4400 of the North Dakota Code hereinbefore quoted. The language of the North Dakota law is:

'Every railroad company organized or doing business in this state shall be liable for all damages done to any employe of such company, in consequence of, ' etc.; * * * 'and no contract which restricts such liability shall be legal or binding.'

The language of the Kansas statute is:

'That railroads in this state shall be liable for all damages done to person or property when done in consequence of any negligence on the part of the railroad companies. ' Laws Kan. 1870, p. 197, c. 93.

While the language of the Iowa statute is:

'Every corporation operating a railroad shall be liable for all damages sustained by any person, including employes of such corporation, in consequence of the negligence,' etc.; * * * 'and no contract which restricts such liability shall be legal or binding.'

In my opinion, section 4400 of the North Dakota Revised Codes of 1905 is a fellow-servant statute, pure and simple, and the prohibition therein contained against the making of contracts restricting the liability of railroad companies for damages occasioned by their negligence should not be construed as having any reference whatsoever to contracts made with railroad companies for the rendition of special services by persons who are in no sense their employes.

Counsel for plaintiff have also suggested that the contract here in question is illegal and void, as being within the express prohibition of sections 4333 and 4334 of the North Dakota Revised Codes of 1905. These sections of the laws of that state were designed to prevent common carriers from giving undue or unreasonable preferences to persons or localities with respect to any particular description of traffic. They were not designed or intended to apply to that peculiar class of transportation which was the subject-matter of the contract between the Northern Pacific Railway Company and the Gollmar Bros. Circus Company. These sections of the North Dakota Revised Codes should, in my opinion, be construed as referring simply to such transportation services as the railroads of that state were or are required to perform for the general public in the discharge of their duties to the public as common carriers, and should not be held to embrace services which the common carriers of that state as well as of other states of the Union have never...